« PreviousContinue »
MINES AND MINING.
CLASSIFICATION OF APEX CASES, AND ILLUSTRATIONS OF
THE RULE, WITH ALL ITS BEARINGS.
The Perfect Location and Its Cognate — When Side Lines Become
8 821. Preliminary - Classification the better plan.
822. Same subject — Value of general principles as controlling. 823. Same - The perfect location. 824. Detailed classification of apex cases, division of the questions in
volved, and an illustration of the matter by drawings. 825. Of the perfect location. 826. The same principle involved, positions reversed, where side lines
become end lines — The Flagstaff case. 827. Same subject - Side lines becoming end lines — Angle of crossing
immaterial — The Amy case. 828. The effect of such a location as to extra-lateral rights — Pursuit
of the vein on its dip beyond the located end line. § 821. Preliminary - Classification the better plan.It is our purpose in this chapter to attempt a classification of the apex cases.
We believe that the intent of the lawmaking power can be best ascertained by grouping together in series, with the appropriate distinctions, all the apex cases, singling out the distinguishing characteristics and arranging them in classes by analogy, assigning each particular case, where it does not exactly fit the class, to such class as it more nearly fits by analogy.
As we view the matter, it would be an incongruous state of affairs, after upwards of twenty-three years of litigation in the different courts where they have been called upon to decide controversies involving the apex question, if the basis for some system of classification had not been evolved. Following cases by analogy is better than exploring new fields.' If courts cannot give to the miner all that he seeks to obtain by his location, owing to the fact that it is imperfectly made, they can at least accord to him the utmost which, under the imperfect mode of making his location, the law will admit of. As was said by the supreme court of the United States: “The most that the court can do, where the lines are drawn inaccurately and irregularly, is to give to the miner such rights as his imperfect location warrants, under the statute.” 2
$ 822. Same subject — Value of general principles as controlling.- Pursuing the line of thought adverted to in the preceding section, it is obvious that the elastic principles of the common law must be applied in the interpretation of these statutes; that is to say, no violence should be done to the acknowledged canons of construction; but so far from this statute being construed in derogation of the common law, it should rather be construed as a remedial statute; and as such the familiar principles should be followed, namely, by inquiring as to what mischief existed in the old law, which was sought to be corrected, and what means were employed for its correction ? And the means should be applied to the end, and the principle of liberal construction observed; that is to say, the remedy advanced, even though it be in derogation of the common law. And in doing this, we believe a better solution of all difficulties can be attained by grouping all apex cases under as few heads as possible, than that each case shall stand upon its own four legs. By this means the first and most laborious feature of the case
1 Iron Silver M. Co. v. Murphy Cons. M. Co., 152 U. S. 222, 228; (Iron Mine v. Loella Mine), 3 Fed. Fitzgerald v. Clark, supra. Rep. 368, 369; Fitzgerald v. Clark, 3 Watervale M. Co. v. Leach 17 Mont. 100, 42 Pac. Rep. 273, 281. (Ariz.), 33 Pac. Rep. 418; Chicago, 2 King v. Amy & Silversmith B. & Q. R. Co. v. Dunn, 52 IIL 260;
Black, Interp. Laws, p. 307.